Peter Garsden is the head of the Abuse department at Simpson Millar LLP. He is also President of the Association of Child Abuse Lawyers.
Call 0845 604 7075

Tuesday, 31 May 2011

How super are super Injunctions?

The spin put on the effectiveness of super injunctions cannot possibly be unbiased, as long as the press are in charge of editing and writing news stories.Why? Because the tabloid media are writing out of self interest and frustration, caused by the restriction preventing them from writing sleazy stories about famous people.

Politicians, as usual, bleat about the way in which the judges, whom they have appointed to upload the law, interpret the Human Rights Act, which they introduced in the first place. Cameron has far too frequently disrespected the decisions of judges. It is a very dangerous game for politicians to play, when they try to take control, and interfere with the workings of the Courts. Philosophers call it separation of powers. In other words the Executive (The Administration), The Judiciary (the Court), and the Legislative (Parliament), should all remain separate. When they clash, overlap, and try to usurp each other’s powers, then, in its extreme form, society can break down. Wrong decisions usually result. Cameron before has, publicly in Parliament, criticised the decisions of the Courts, and the way in which lawyers operate. He fails to realise that all they are doing is interpreting laws, which Parliament has made. He, or any other politicians, can hardly complain if they are interpreted in a way they don’t approve of.

Cameron never ceases, in an uninformed way, to moan about the decisions of the Courts in Human Rights cases. He must think that the vulnerable do not deserve rights. Prisoners should obviously not be allowed to vote when they are in prison. After all they are being looked after by the state, so if things are going wrong, they should not be able to complain to their MP, should they. The illogicality of this proposition is self evident. The Human Rights Act is not there to protect only prisoners, or sex offenders, but the great British Public from every day intrusions into our lives by Government. It stops society from turning into the grey depressing concept that was George Orwell’s 1984, where Big Brother (not the Channel 4 show) watched every move.

On Question Time, the other night, the media solicitor, Charlotte Harris, cleverly posed a scenario, which hopefully alarmed the audience and emphasised the importance of the right to privacy and family life. Imagine a scenario where one day a journalist rings up a man on the street, and informs him that a large newspaper has found out that he is having an affair with his best friend’s wife, and is very interested in publishing a story about it. This would be most alarming. One would hope that the right to privacy would prevent the newspaper from publishing this sort of thing. The difference in reality would be that the man on the street cannot afford to go to court, because of the lack of availability of legal aid to any but the most poor.

Parliament, in their wisdom, are going to try to find a solution. But how can they? How does one legislate to stop judge’s exercising their sensible and wise discretion? Each case is different. Is the right of a footballer to remain private a public issue, whereas Sir Fred Goodwin’s adulterous activity in the public interest because he is in charge of a part publicly owned bank? One can see that every case turns on its own facts, and not capable of being codified.

What Parliament can, and should do, is legislate to stop Members of Parliament from abusing their right of free speech and privilege to break super injunctions, just because they happen to disagree with the law. There are a lot of laws that we all disagree with, but if we tried the same sort of thing, we would end up on the wrong end of an action for Contempt of Court, or paying out damages for such a flagrant breach. It was so reprehensible that both the Speaker at the time, and the Lord Chief Justice, Lord Judge, rebuked the behaviour of MP’s. This is not the first time that Parliamentary privilege has been used to leak private information. Parliament should show a better example, and not abuse their special rules. In my opinion this abuse is worse than some of the allegations of expenses fraud, which has led to incarceration.

Super injunctions are designed to protect the super rich and celebrities from the invasion into their personal lives by the paparazzi. Any normal member of the public who has experienced this has been alarmed by it, so pushy and aggressive can they be. Somehow, celebrities, are different of course, because they have so much money that it should not matter?

So important are Human Rights, that we sacrifice them at our peril. The government have to learn more respect for the judiciary, and lawyers. They should show a better example by their behaviour, and leave the law to the lawyers. The press have arguably far too much freedom, and do not need any more. In my experience they get very touchy, and overreact if they think their freedom is being eroded. They start talking about dictatorships and government controlled press, which is a long way off.